FAS Intro: In a major setback to the successful declassification programs of recent years, Congress has adopted the following amendment to the 1999 Defense Authorization Act. It will have the effect of terminating all automatic declassification activity for at least several months, while a "plan to prevent the inadvertent release of records containing Restricted Data" is developed. For related information, see the 14 July 1998 letter from the National Archivist, and the 28 July 1998 letter from Kenneth Baker of DOE.

This amendment was further amended in Section 1068 of the FY2000 Defense Authorization Act to require further review of previously declassified documents, yielding what became known as the "Kyl-Lott Amendment."

STROM THURMOND
NATIONAL DEFENSE AUTHORIZATION ACT
FOR FISCAL YEAR 1999

(a) PLAN FOR PROTECTION AGAINST RELEASE- The Secretary of Energy and the Archivist of the United States shall, after consultation with the members of the National Security Council and in consultation with the Secretary of Defense and the heads of other appropriate Federal agencies, develop a plan to prevent the inadvertent release of records containing Restricted Data or Formerly Restricted Data during the automatic declassification of records under Executive Order 12958 (50 U.S.C. 435 note).

(b) PLAN ELEMENTS- The plan under subsection (a) shall include the following:

(1) The actions to be taken in order to ensure that records subject to Executive Order 12958 are reviewed on a page-by-page basis for Restricted Data and Formerly Restricted Data unless they have been determined to be highly unlikely to contain Restricted Data or Formerly Restricted Data.

(2) The criteria and process by which documents are determined to be highly unlikely to contain Restricted Data or Formerly Restricted Data.

(3) The actions to be taken in order to ensure proper training, supervision, and evaluation of personnel engaged in declassification under that Executive Order so that such personnel recognize Restricted Data and Formerly Restricted Data.

(4) The extent to which automated declassification technologies will be used under that Executive Order to protect Restricted Data and Formerly Restricted Data from inadvertent release.

(5) Procedures for periodic review and evaluation by the Secretary of Energy, in consultation with the Director of the Information Security Oversight Office of the National Archives and Records Administration, of compliance by Federal agencies with the plan.

(6) Procedures for resolving disagreements among Federal agencies regarding declassification procedures and decisions under the plan.

(7) The funding, personnel, and other resources required to carry out the plan.

(8) A timetable for implementation of the plan.

(c) LIMITATION ON DECLASSIFICATION OF CERTAIN RECORDS-

(1) Effective on the date of the enactment of this Act and except as provided in paragraph (3), a record referred to in subsection (a) may not be declassified unless the agency having custody of the record reviews the record on a page-by-page basis to ensure that the record does not contain Restricted Data or Formerly Restricted Data.

(2) Any record determined as a result of a review under paragraph (1) to contain Restricted Data or Formerly Restricted Data may not be declassified until the Secretary of Energy, in conjunction with the head of the agency having custody of the record, determines that the document is suitable for declassification.

(3) After the date occurring 60 days after the submission of the plan required by subsection (a) to the committees referred to in paragraphs (1) and (2) of subsection (d), the requirement under paragraph (1) to review a record on a page-by-page basis shall not apply in the case of a record determined, under the actions specified in the plan pursuant to subsection (b)(1), to be a record that is highly unlikely to contain Restricted Data or Formerly Restricted Data.

(d) SUBMISSION OF PLAN- The Secretary of Energy shall submit the plan required under subsection (a) to the following:

(1) The Committee on Armed Services of the Senate.

(2) The Committee on National Security of the House of Representatives.

(3) The Assistant to the President for National Security Affairs.

(e) SUBMISSION OF REVIEWS- The Secretary of Energy shall, on a periodic basis, submit a summary of the results of the periodic reviews and evaluations specified in the plan pursuant to subsection (b)(4) to the committees and Assistant to the President specified in subsection (d).

(f) REPORT AND NOTIFICATION REGARDING INADVERTENT RELEASES-

(1) The Secretary of Energy shall submit to the committees and Assistant to the President specified in subsection (d) a report on inadvertent releases of Restricted Data or Formerly Restricted Data under Executive Order 12958 that occurred before the date of the enactment of this Act.

(2) Not later than 30 days after any such inadvertent release occurring after the date of the enactment of this Act, the Secretary of Energy shall notify the committees and Assistant to the President specified in subsection (d) of such releases.

(g) DEFINITION- In this section, the term 'Restricted Data' has the meaning given that term in section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

The Senate amendment contained a provision (sec. 3146) that would amend section 3155 of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104-106) by requiring all federal agencies, including the National Archives and Records Administration, to conduct a visual inspection of all records over 25 years old to ascertain that such records contain no information classified as restricted data or formerly restricted data. The provision would require that any records found to contain such classified information be set aside pending completion of a review by the Department of Energy.

The House bill contained no similar provision.

The House recedes with an amendment that would require the Secretary of Energy and the Archivist of the United States, after consultation with members of the National Security Council, and, in consultation with the Secretary of Defense and the heads of appropriate federal agencies, to develop a plan to prevent records containing restricted data or formerly restricted data from
being inadvertently released under Executive Order 12958. The plan would include the following elements: (1) actions that will be taken to ensure that only records series that are highly unlikely to contain restricted data or formerly restricted data are released without a page-by-page review; (2) the criteria by which documents will be determined to be highly unlikely to contain
restricted data or formerly restricted data; (3) steps to be taken to ensure proper training, evaluation, and supervision of declassification personnel to recognize restricted data and formerly restricted data; (4) the extent to which automated declassification technologies will be used to protect restricted data and formerly restricted data; (5) procedures for periodic Department of Energy review and evaluation of agency compliance with the plan; (6) procedures for resolving disagreements among agencies regarding declassification procedures and decisions; (7) identification of funding, personnel, and other resources required to carry out the plan; and (8) a timetable to implement the plan. Summaries of the periodic review of agency compliance would be provided to the President's National Security Advisor and to the Committee on Armed Services of the Senate and the National Security Committee of the House of Representatives. The amendment would halt the use of bulk declassification of any document covered by this provision until 60 days after the plan is submitted to the Committee on Armed Services of the Senate and the National Security Committee of the House of Representatives, and the Assistant to the President for National Security Affairs.

The conferees support current efforts to reduce the volume of information retained as classified. The conferees are, however, concerned that Executive Order 12958 does not ensure adequate protection of information classified as restricted data or formerly restricted data. This provision is intended to ensure greater review and scrutiny of those federal records that may contain information classified as restricted data or formerly restricted data prior to the bulk declassification and subsequent release of such records. The conferees do not intend this provision to slow down much needed efforts to reduce the amount of classified material maintained in federal archives.

The conferees believe that the President must ensure that each Executive Branch agency with custodial responsibility for the records described in the provision has available sufficient funds to carry out the requirements of this provision.